Nuhu v Senator Bwacha and Others (CA/YL/105/2015) [2016] NGCA 10 (28 June 2016)





Holden at Yola










This appeal is against the Ruling delivered at the Federal High Court, Jalingo in the Taraba Judicial Division on the 13th September, 2015 in Suit No. FHC/TAR/M/24/2015.

The Appellant as plaintiff instituted action at the Federal High Court, in the Federal Capital Territory, Abuja by way of the Originating Summons dated and filed on the 31st December, 2014 wherein he sought for the determination of the sole question, that is:

Whether the 2nd defendant for the purpose of selecting its candidates for the Senate Primary Election for Taraba South Senatorial District in Taraba State for the 2015 general election can adopt a procedure other than that provided in 2nd defendant’s Electoral guideline for Primary Elections 2014 the 2nd defendants Constitution 2012 (as amended) and the Electoral Act, 2010 (as amended) .

As a consequence the plaintiff (Appellant) sought all the reliefs covered the Originating Summons as follows:

“WHEREOF the plaintiff (s) the followings:

(i)    A DECLARATION that the 2nd defendant cannot adopt any procedure other than that provided in the 2nd defendant’s Electoral Guideline for Primary Elections 2014, Section 50 95) of the 2nd defendant’s Constitution 2012 (as amended) and Section 87 (4) (c) (i) & (ii) of the Electoral act, 2010 (as amended) for the purpose of selecting candidate for Senate to represent Taraba State South Senatorial District in Taraba State for the 2015 General Elections
(ii)    A DECLARATION that the 2nd defendant having not complained with its own Electoral Guideline for Primary Elections 2014, Section 50 (5) of the 2nd defendant Constitution 2012 (as amended) and Section 87 (4) (c) (i) & (ii) of the Electoral Act, 2010 (as amended0 has not validly conducted for senate to represent south Senatorial District in Taraba State, for the 2015 General Election.
(iii)    AN ORDER nullifying the primary elections conducted by the 2nd defendant on the 11th December, 2014 for the purpose of nominating a Senate candidate for the 2nd defendant to represent Taraba South Senatorial District at the Senate for the 2015 General Elections 
(iv)    AN ORDER directing the 2nd defendant to conduct a fresh primary election in accordance with the 2nd defendant’s Electoral Guideline for Primary Elections, 2014 in compliance with the 2nd defendant’s Constitution 2012 (as amended) and the provision of the Electoral Act, 2010 (as amended0 for the purpose of nominating a Senate candidate for the 2nd defendant to present Taraba State Senatorial District in Taraba State.
(v)    AN ORDER restraining the 3rd defendant from accepting and /or recognizing or dealing in any manner with the name of the 1st defendant as candidate of the 2nd defendant for the Senate for Taraba South Senatorial District for the 2015 General Election

AND FOR FURTHER ORDERS (S) as this Honourable Court may deem fit to make in the just determination in the circumstances.”

The Originating Summons had in support an affidavit of 25 paragraphs and certain documents among which are the Electoral Guidelines for Primary Election 2014 of the Peoples, Democratic Party and the Constitution of the Peoples Democratic Party. The Originating Summons is further accompanied with the written address of counsel as at the date of filing on the 31st December, 2014. See pages 142 – 157 of record. 

At the sitting of the 3rd February, 2015 at Abuja, the Federal High Court by an order issued the same date, caused the suit that is, the Originating Summons to be transferred to the Federal High Court, Jalingo Tarba 

State wherein, at the Registry, the Suit was assigned with No. FHC/TAR/SC/5/15 and thereafter caused the process to be served on the  defendants.

Upon service of the Originating Summons, the 1st and 2nddefendants, now respondents filed their separate conditional appearance, and thereafter filed their separate and distinct Motion on Notice, that is Motion on Notice No. FHC/TAR/M/28/2015 filed on the 30th August, 2015for the 1st defendant/respondent and Motion on Notice No. FHC/TAR/M/27/2015 filed 30th April, 2015 for the 2nd Respondent. The Appellant in turn filed his response only in respect of the application by the 2nd defendant (respondent). In both applications, the 1st and 2nd defendants (respondents) urged on the court below to strike out or dismiss the Originating Summons for being grossly incompetent or null and void based on the grounds set out in the respective Motions on Notice, the affidavits in support of the two Motions and their  written addresses. Upon hearing of the two applications on the 20th May, 2015 and the response of the appellant, the court below, in 2 (two) separate Rulings delivered the same day on 17th September, 2015 declined jurisdiction and upheld the objection of the 1st and 2nd respondents.

Peeved by the court below the plaintiff by the Notice filed on the 22nd October, 2015 lodged an appeal to this court on 7 (seven) grounds as contained in the record of appeal at pages 459 to 466. The record of appeal as has since the 16th November, 2016 been transmitted to this court.

In the briefs of argument filed and exchanged between counsel 4 Issues as formulated by the Appellant in his brief filed on the 23th December, 2015 at pages 6 – 7 were agreed upon and indeed adopted by the 1st and 2nd respondents in their joint brief of argument filed on the 9th February, 2016 at paragraph 5.2 of the brief as issues for determination in this appeal savethe point(s) of Preliminary Objection raised and is subsumed in the respondents’ brief of argument in opposition to this appeal at pages 4 – 12 of the said brief.

A separate Notice of Preliminary Objection to the appeal which has the sameeffect was filed along with the brief of argument for the 1st and 2nd respondents on the 9th February, 2016. The 3rdRespondent (INEC) has not filed any brief of argument and they were not represented by counsel on the date the appeal came up for hearing.

Mr. E. A. Ibrahim Effiong at the hearing of the appeal on the 23rd May, 2016 invited our attention to his Notice of Preliminary Objection filed both as a separate process and as a process already incorporated into the brief of argument for the respondents and argument canvassed thereto, and he adopted same to urge on the court to uphold the Objection and strike out the appeal for reasons canvassed in their brief of argument.
Mr. Abbass Ajiya, learned counsel for the appellant in his response to the Preliminary Objection referred us to the reply brief filed by them 9th March, 2016 in opposition and to arguments canvassed therein in urging us to discountenance the Preliminary Objection.

Being the process which seeks to terminate this appeal in lamine, there is the need to first examine the complaints arising from this objection.

The sole objection is itself predicated on the competence of the appeal and this is how the 1st and 2nd respondents couched it in their Notice of Preliminary Objection, thus:-

“The entire Appeal is a mere academic exercise in that even if the issues raised therein are resolved in favour of the appellant the fortune of the appeal would not change in the face of the unappealed findings in the decision emanating from the objection of the 2nd Respondent thus rendering the appeal grossly incompetent.


i.    The 1stand 2nd Respondents filed separate and independent Applications challenging the jurisdiction of the Lower Tribunal on 9 and 5 grounds respectively as could be discerned from pages 260-319 and 320-376 of the printed Record.
ii.    In the application of the 1st Respondent, 7 issues were formulated from the 9 grounds and in that of the 2ndRespondent 5 issues were formulated from the 5 grounds. We refer this Court to pages 273 and 331-332 of the Printed Record.
iii.    The Lower Court upon hearing the Applications reformulated two issue for determination in respect of the Objection of the 1stRespondent and 3 in respect of that of the 2nd Respondent. See pages 421-422 and 450 of the Printed record.
iv.    The Lower Court on 17th September, 2015 delivered two separate and distinct rulings as could be gleaned from pages 399-430 (ruling on the objection of the 2nd Respondent) and pages 431-457 (Ruling on the Objection of the 1st Respondent).
v.    The two rulings supra constituted two separate, distinct and independent decisions.
vi.    The Appellant filed a sole Notice of Appeal without stating the decision appealed against and in fact from the Notice and grounds of Appeal, it could safely be referred that the appeal is limited to the decision arising from the Objection of the 1st Respondent only on the grounds infra:’’

Learned respondents’ counsel formulated just one (1) issue as arising for determination from those grounds of objection thus:

Whether in the face of damaging specific findings of the Court below against the Appellant is the objection of the 2ndRespondent which this appeal is unrelated especially to the effect that this appeal is not rendered academic?Arguments canvassed in support of the lone issue can be seen at pages 7 – 12, paragraphs 4.1 -4.16 by which learned counsel for the 1st and 2nd respondents alluded to the 2 (two) separate applications made by them at the court below. Be seen at pages 252 – 319 and 320 – 376 of the printed record. He noted that the court below gave two separate and distinct rulings in respect of those two applications and he referred us to the two ruling at pages 399 – 530 and 431 – 457 of the printed record. Learned counsel argued that all the grounds of appeal as highlighted in particular (iv) of the particulars of grounds of objection arose from the decision or ruling given in respect of the objection of the 1st respondents alone and thereby leaving the decision and the findings contained therein in respect of the objection of the 2nd respondents as still extant. He referred in particular to the findings of the court below at pages 428 – 429 of the record which he said were not appealed against. These findings he said, are that the suit disclosed no locus standi, cause of action and that the matter was not justiciable. He contended that this finding of which there was no appeal was peculiar to the objection of the 2nd respondent only. He went further to submit that where the findings of a court are not specifically challenged the same remain undisputed and is deemed admitted citing in support the  decision in N.B.C.I. Vs. Integrated Gas (2005)2 SCM 67, 205; Dabo v. Abdulahi (2005) 4 SCM 52, 69; Olukoya v. Asheru (20060 7 SCM 175, 188; Standard Nig. Entr. Vs. NBCI (2006) 4 SCM 194, 2005; Bhojsons Plc V. Kalio (2006) 4 SCM 1 13 – 14 in consequence of this it is argued that the instant appeal even if it succeeds will have no meaningful impact on the appellant who derived no benefits from the ruling so far as there was no appeal over the findings of the same court in the second ruling. To this end he said the appeal was not only academic and hypothetical but frolicsome. He cited a number of authorities on that point among which are: (i) Plateau State V. Attorney General of the Federation (2006) 3 NWLR (Pt. 967) 346, 419. (ii) Adeogun V. Fashogbon (2009) All FWLR (Pt. 449) 531, 552 – 553,. In such circumstance, it is furtherargued, the court will not act in vain to entertain questions of academic nature lacking practical utility value. He relied on Nwora V. Nwebueze (2012) All FWLR (Pt. 613)1824. The appeal, it is further argued, being academic in nature, this court lacks jurisdiction to determine academic and hypothetical questions, relying on Ikyenya Vs. PDP (2012) All FWLR (Pt. 628) 837, 853. Such question or appeals he said should be discountenanced by the court. He relied on quite a number of authorities including (i) Ugba V. Suswan (2014) All FWLR (Pt. 748) 8 25, 855 (ii) Audu V. Attorney General of the Federation (2013) All FWLR (Pt. 667) 607), 024. (iii) Abe V. University of Ilorin (2013) All FWLR (Pt. 697) 682, 698 (iv) Oke V. Mimiko (2013) All FWLR (Pt. 693) 1853, 1879 (v) Inec V. Atuma (2013) All FWLR  (Pt. 697) 619, 633.

He argued further and submitted that a court is competent when:-

(a)  It is properly constituted.
(b)The subject-matter of the case is within the jurisdiction of the court and there is no feature in the case preventing the court from exercising its jurisdiction, and
(c)  The case comes before the court duly initiated by due process and upon fulfillment of any condition precedent. 

He cited: Hamza & Anor. Vs. Sani & Ors (2015) 1 SCM 174, 191; APGA Vs. Anyawu (2014) All FWLR(Pt. 735) 243, 263; Emenike V. PDP (2012) All FWLR (Pt. 640) 1261, 1289; Akpangbo-Okadigbo Vs. Chidi & Ors. (2013) 3 SCM 141, 202 to urge us to strike out or dismiss this appeal on this ground.

In the reply brief filed on the 9th March, 2016, the appellant questioned the competence of the brief of argument filed by the Respondents stating that the brief was in excess of 3o page limit as ordained or allowed by the Rules under Order 18 Rule 6 (a0 of the Court of Appeal Rules, 2011, that is, putting together 1st and 2nd respondents’ brief of 28 (twenty eight) pages and the brief containing the list of legal authorities filed by them consisting of 3 (three) pages. He argued that this failure of compliance with the rules meant that no Brief of argument was filed by the 1st and 2nd Respondents, the consequence of which is that they cannot be heard on oral argument and they are deemed to have admitted the truth of the contents of the brief filed for the Appellant. He cited in support the decision in Dilibe V. Nwakozor (1986) 5 NWLR (Pt. 41) 315, 333; Oyesoh V. Nnebedan (1992) 3 SCNJ129, 153; Nwokoro Vs. Onume (1990) 3 NWLR (Pt. 136) 22, 32; Unity Bank Plc. Vs. Edward Bouari (2008) 2 SCNJ 116. 

In response to the specific complaints raised by the preliminary Objection, the Appellant or his counsel canvassed the lone issue distilled by him and that is, whether the Preliminary Objection as argued by the Respondents, has merit?

It is argued that the 2 (two) rulings delivered at the court below at pages 399 and 431 of the record of appeal were products of the same Motion Number i.e FHC/TAR/M/24/15 in the same suit No. FHC/TAR/CS/5/15 both of which were delivered on the 17th September, 2015 by the same Judge, Hon. Justice D. U. Okorowo.

To further buttress this point learned counsel referred to the Notice of Appeal in Appeal No. CA/YL/105/15 to submit that the appeal is against the decision of Hon. D. U. Okorowo ,Judge dated the 17th September, 2015 in Suit. No. FHC/TAR/CS/5/15.By reference to part 2 of the same Notice of Appeal it is also contended that the Appeal is against the whole decision of D. U. Okorowo delivered on 17th September, 2015 in Suit. No. FHC/TAR/CS/5/15.
Learned appellant’s counsel therefore urged us not to succumb to the arguments canvassed by counsel for the respondents in their brief stating that those submissions bordered on technicalities but urge on the court to deal with the substance in order to achieve substantial Justice.

Before I take on the issues raised by the Preliminary Objection, there is equally a fundamental question which throw up a challenge that because of the seeming or apparent defects in the brief of argument filed by the Respondents, there was no brief at all by them and that this court should discountenance that defective brief. I will first address this point.
Going by the records it is discernible that the 1st and 2nd respondents filed their brief of argument on the 9th February, 2016 and the same brief dated the 4th February, 2010 runs into 28 pages.

By another process filed on behalf of the 1st and 2nd respondents on the same 9th February, 2016, captioned list of authorities, in respect of the same appeal, that is, Appeal No. CA/YL/105/2015, between the same parties, is a document of 4 pages.

Order 18 rules 3(1) and (2) of the Rules of this court on the Forms and Contents of a brief, provide thus:-

“3-(1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the Appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.

(2)Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, date and pages of cases reported in the Law Reports or elsewhere including the summary of the decision in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals”

It is clear that by this provision, the document or process captioned list of authorities, whether subsumed in the main brief of argument or not are still part of the brief, so far as it is intended to support arguments or submissions contained in that brief which in any case shall not exceed 30 (thirty) pages. See order 18 rules 6 (a).

The process filed on the 9th February, 2016 and captioned “List of Authorities” run into 4 pages and these pages when added to 28 (twenty-eight) pages that is the number of pages contained in the 1st and 2nd respondents’ brief of argument will run into 32 pages or thereabout which is in excess of the 36 page limit allowed by the rules of court.

The consequence of filing a brief of argument in excess of 30 page limit is the provision which empower the registry of this court to refuse to accept such briefs upon presentation of same for filing. See Order 18 rule 6 (c) of the rules of this court.

Now, the brief of argument for the 1st and 2nd respondents like the brief of argument for the appellant are now before us in this court. It escaped the eagle eyes of the registry albeit undeservedly and has gone beyond the registry, and it is now before us, in this court. Should this court at this point in time ignore this brief as argued by the appellant or his counsel in their brief? Not too long ago this court was confronted with a situation similar to this and this is what I said at that time, in the case of Iorundij Atau Azanke&Anor V. Emmanuel Machoko (unreported), a decision delivered on the 26thMay, 2016 in Appeal No. CA/YL/48/2014 and I quote in Extensor, thus:-
“Appellants’ brief of argument before the court, unarguably, runs through 36 pages contrary to the stipulation in Order 18 rule 6 (a) of the rules of this court.

Leave was neither sought nor obtained as at the date the brief was filed on the 7/12/2015. There is nothing on record to so suggest that this court by an order has directed the appellants to file their brief of argument in excess of 30 page format as provided for in the rules. This, thus is a case of non-compliance with the mandatory provisions of the Rules. But rules of court are meant to be obeyed and not made for the sake of making them as held in Williams V. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC;  African News papers Ltd V. Owososeni (1995) 2 NWLR (Pt. 375) 110; Opera V. Dawell Schuhom-Berger Nig. Ltd. (1995) 4 NWLR (Pt. 390) 440. There is a purpose for making the rules and that is, to check verbosity and to ensure that brief of argument are not unwieldy long winded and cumbersome. Failure of compliance with rules of court may not invalidate proceedings or court process see order 20 of the rules of court but such non-compliance may invite sanctions in other cases as for instance order 18 rule 6 (c) of the rules of this court provide that every brief which fail to comply with the page limit and page size requirements shall not be accepted by the Registry, for filing. This provision of the Rules cast on the Registry the duty of having to scrutinize all documents or papers especially briefs of argument submitted for filing to ensure compliance. As a clearing house, the registry must not shirk in its responsibilities. It has a duty to sieve the chaff from the grain and refuse to accept all or any Brief of argument for non-conformity with set standards at the point of filing. This is a wake – up call. 

Now, Appellants’ briefs of argument of 36 pages, having been accepted and filed at the registry, notwithstanding the provisions of the rules i.e. Order 18 rule 6 (a), and has come before us at this level should the court at the point of hearing discountenance same on account of non-compliance with the rules? I do not think it is the right thing to do, at this stage of the proceedings, to reject briefs of argument of counsel for the Appellant at the point of hearing his case. Rather, this court guided by the principle of fair hearing will be inclined to overlook any inelegance or flaws noticeable in the appellants’ brief of argument and do substantial justice to it as it has a duty to examine the arguments contained therein and decide the case on the merits. See: Obiora V. Osele (1989) 1 NWLR (Pt. 97) 279; Ekpemupolo Vs. Edremoda & Ors LPELR – 1089 (SC).”

I still want to stand by those conclusions in the case referred to above and I think my conclusion or opinion there is relevant to the issue on hand in this appeal case hence I adopt same. I do not think it is wise thing to do, to ignore issues raised by the respondents in the Notice of Preliminary Objection. There is need to examine their claim by that objection.

The 1st and 2nd respondents indeed respectively filed their two separate Motions upon being served with the appellant’s Originating Summons. The Motion dated the 30th August, 2015 and filed on behalf of the 1st respondent on the same date was directed at the Jurisdiction of the court below to entertain the claim. So is the Motion dated and filed on the 30thApril, 2015 on behalf of the 2nddefendant. The court below heard the 2 (two) applications the same day and reserved ruling in each one of them. In the ruling (s) delivered on 17th September, 2015 In Suit/Motion No. FHC/TAR/M/24/2015 the court declined jurisdiction hence this appeal. 
I have given thought to all the submissions made by counsel and the authorities cited by them. The gist of the Objection taken lie in the fact that the appeal before us is a sheer waste of time and an exercise in futility such that even if the appeal succeeds, the success will not confer any utility value on the appellant hence the appeal is merely of academic and hypothetical, so far as the appeal over or against 1 (one) ruling or decision leaves the other or the 2nd ruling still extant.

I know that the courts over time have refused to indulge and deal with academic and hypothetical questions rather the courts are established to deal with matters in difference between the parties. This is so because academic or hypothetical questions do not help in the determination of live issues in a matter. They are merely frolicsome, not touching or affecting the very tangible and material aspect in the adjudication process. See: Okotie-Eboh V. Manager (2004) 18 NWLR (Pt. 905) 242; Bangboye V. University of Ilorin (1999) 10 NWLR (Pt. 6 22) 290; Owners of MV.  Arabella V. NAIC (2008)11 NWLR (Pt. 1097) 182 or (2008) 34 NSCQR (Pt. 11) 109; Adeogun V. Fashogbon 149 (SC); Yusuf V. Tolushi (2008) 14 NWLR (Pt. 1107) 237 or (2008) 6 – 7 SC (Pt. 1) 164.

The question therefore is whether the current appeal is merely academic or hypothetical as being canvassed by the respondents in the light of the ruling at pages 399-430 of the printed record over which it is argued there is no appeal? This is the contention of counsel to the respondents. It is claimed that the current appeal does not relate to the ruling referred to above but the ruling at pages 431-457 of the printed record in respect of the Motion on Notice filed by the 1st respondent

There is the need therefore to take another look at the Notice of Appeal so as to discover to which ruling or decision, the appeal relates.

The Notice of Appeal state at page 459 of the printed record thus: 


TAKE NOTICE that the appellant being dissatisfied with the decision of the Federal High Court of Justice of Taraba Judicial Division, Jalingo, as contained in the ruling of Honourable D. U. Okorowo, Judge dated the 17th day of September, 2015 in Suit No. FHC/TAR/CS/5/1, do hereby appeal to the Court of Appeal, holden at Yola, upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the relieves (sic) set out in paragraph 4.
AND the appellant further state that the names and addresses of the person directly affected by the appeal are those set out in paragraph 5”

I stop here for now. The decision appealed against unarguably, is the Ruling:

(i)    Of Honourable D. U Okorowo, Judge. 
(ii)    Dated or delivered on the 17th day of September, 2015
(iii)    In Suit No. FHC/TAR/CS/5/2015
(iv)    In Motion No. FHC/TAR/M/24/2015

The decisions referred to earlier at pages 399-429 and pages 431 – 457 both have and retain the characteristics listed as in (i) (ii) (iii) and (iv) above. And that is not all. The appeal is against “the whole decision” and this can be discerned from the second part of the Notice of Appeal – captioned: PART OF THE DECISIONS OF THE LOWER COURT COMPLAINED OF: The word “Decision” as constitutionally defined as Section 318 (1) of the 1999

Constitution as amended means:
“any determination of that court and includes Judgment; decree, order, conviction, sentence or recommendation” 

See Dr. Kubor & Anor Vs. Dickson &Ors (2012) 10 – 11 SC 1; Garuba V. Omo Khodion& 13 Ors. (2011) 6 – 7 .(Pt. V) 89.This definition thus is wide enough to accommodate any ruling or rulings of court as in the instant case on appeal. The appeal by the appellant as presented by the Notice of Appeal under reference is not an appeal  againstjust1 (one) decision but an appeal against the “decisions” of the Lower Court andifI may add, it is an appeal against the decisions delivered by D. U. Okorowo, the Presiding Judge of the Federal High Court of Justice, Taraba State Judicial Division, Jalingo, on the 17th September, 2015 in Suit No. Motion FHC/TaR/Cs/5/2015 in FHC/tAR/M/24/2015.

Every Notice of Appeal constains what the subject matter of the appeal is all about. See: Dyagyadi V. INEC (No. 2) (2010) 18 NWLR (Pt. 224) 154 (SC).  The subject-matter or areas addressed in this appeal and to which a complaint has been lodged is with respect to the Issues, among others of:

i.    Service of Originating Process
ii.    The issue of non-compliance with the provision of Section 97 and 98 of the Sheriffs and Civil process Act…………..
iii.    The Issue of the Plaintiff’s/Appellant’s lack of locus standi at the time his claim was filed and/or his claim not having disclosed any cause of action.
iv.    The issue or question of the justiciability of the action or claim.

I have read the ruling of the Court below at pages 399 -430 of the printed record and I can say without equivocation that issues or the subject matter covered by the Notice of appeal are the same or similar subject areas or matters over which the court below has also addressed the ruling delivered by it on the 17th September, 2015 which is at pages 399 – 430 of the printed record, for instance the court at pages 421 – 429 of the printed record raised and addressed 3 (three) fundamental questions as they relates to (a) Plaintiff’s/appellant’s Cause of Action, I.e- whether the Suit filed by him disclosed any cause of action as to confer on the court the jurisdiction to entertain the claim (b) the issue of the locus standi of the plaintiff, to initiate the suit and (c) the Justiciability of the Suit instituted by the plaintiff /appellant.

To contend as the respondent did in their argument in support of the Preliminary Objection that this appeal does not relate to the ruling at pages 397 – 429 of the record is to my mind a misconception of the issues raised in the Notice of appeal and for this I should overrule the preliminary Objection and dismiss same. 

But granted that the appeal relate to one (1) decision (ruling) only and not the other (ruling) as claimed, how then does it affect the validity of the Notice to which this appeal relate? That is the question: The ruling over which there is no appeal remain as a subsisting and valid decision and therefore binding on the parties to it even if the current appeal succeeds. I therefore find no merit in this Preliminary Objection which is hereby dismissed.

I will now consider this appeal on the merits. Before now reference was made to the briefs of argument filed on behalf of parties on both sides including the reply brief filed on the 9th March, 2016. In the brief by the appellant 4 (four) issues were distilled at page 4 as follows:-

1.    Whether in the circumstances of the Suit of the Appellant any of the provisions of the rules of the Lower Court or Sheriffs and Civil process Act regarding the issuance and service of originating process was violated?
2.    Whether in the determination of locus standi or cause of action it is permissible to consider evidence that is extrinsic or extraneous to the originating process?
3.    Whether in the circumstances of the default of defence/response to the Originating process filed by the Appellant he is entitled to the Judgment of the lower court in terms of the indorsed relieves? (sic)
4.    Whether in the determination of the application of the 1st and 2nd respondents, the lower court glossed over the fundamental issues, decisive evidence and crucial legal submission?

By the brief of argument filed on9th February, 2016 the 1st and 2nd respondents adopted all the 4 (four) issues formulated by the appellant. It follows therefore that this appeal will be decided on the 4 (four) issues formulated by the appellant in his brief of argument and this is what I now proceed to consider arguments proffered on those issues:


Whether, in the circumstance of the Appellant, any of the provisions of the Rules of the lower court or Sheriffs and Civil Process Act, regarding the issuance and service of Originating Process was violated? (distilled from grounds 1 and 2 of the Notice of appeal)

In addressing this question in his brief of argument at pages 7-10, learned counsel for the appellant drew the attention of the court to the fact that the process by which the Suit was argued was filed or was issued at the Federal High Court in Abuja and to be served on all defendants/respondents in Abuja whose address of service were also endorsed on the writ. That service had not been effected ass the  Judge, Presiding at the Abuja Division of Federal High Court, A. R. Mohamed caused the Summons to be transferred to Taraba Division of the Federal High Court on the 23rd February, 2015, where service was now effected on the defendants/respondents, that upon the process now being served the 1st and 2nd respondents entered appearances and filed a motion on Notice No. FHC/TAR/M/28/15 dated the 30th April, 2015wherein the objection was raised alleging that the appellant did not seek and obtain leave of the Federal High Court sitting in Jalingo to action and serve the process in Abuja.

Before us it is argued that leave to issue an originating process was not necessary in the circumstances of this case. That leave is only necessary where service is to be effected outside the territorial limit of the court. It is argued that the fact of the transfer of the Suit to Taraba Division of the Federal High Court did not invalidate its issuance by the Abuja judicial Division of the Court which still remain as one and the same court. He cited and relied on Egbe v. Areka (1988) 7 SC (Pt. 3) 98, 11.

Learned appellant’s counsel further argue that assuming that the issuance of the Writ became invalid

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